Have I Heard That Before? Copyright’s Impact on Drawing Inspiration from Music’s Past

Sam Smith, along with cowriters James Napier and William Phillips, also have to share credit with Tom Petty and Jeff Lynne due to similarity to the latter duo’s 1989 song “I Won’t Back Down.” Now, the similarities between the two choruses are quite striking to anyone who has heard both songs, but Smith has maintained from the beginning that they had never heard the Petty song prior to composing their melody. Yet, in order to avoid litigation, Smith, their cowriters, and the record label agreed to add Petty and Lynne to the songwriter credits and give them 12.5 percent of the royalties. However, Petty himself acknowledged that the similarity was likely just one of those things that happen in songwriting.¹ Despite countless possible permutations of the 12 notes in the Western musical scale, there are only so many that both sound pleasing and work with a given chord progression.

So, why did Smith agree to share credit when they maintain that there was no intent of infringement? It probably comes down to legal case law and the fact that they might lose if the case went before a judge and jury. It would not be the first time such a thing has happened.

In 1976, a court ruled against George Harrison, deciding that his 1971 track “My Sweet Lord” infringed upon the Chiffons’ 1963 song “He’s So Fine” and finding that Harrison had “subconsciously copied” the tune from the Chiffons. Similarly, Michael Bolton was found to have copied portions of the Isley Brothers’ “Love Is a Wonderful Thing,” a relatively obscure track in their catalog, when he released a song by the same name in 1991—a track Bolton maintains that he had never heard and which bears even less similarity to the supposedly infringed track than Smith’s does to Petty.²

It is as Tom Petty wrote to Sam Smith after the two sides reached an agreement: “All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door, but in this case it got by.”³ It begs the question, though, if Petty believed Smith did nothing wrong, and Smith maintains their innocence from infringement, why the agreement?

It’s simple: the current climate around copyright law heavily favors existing copyright holders, which—when combined with audiences’ prejudice toward people “stealing” from older songs—has cultivated an atmosphere of fear among composers and record companies. However, these attitudes are very recent developments in the history of music and, if trends continue, risk destroying one of the essential elements of musical development and evolution: drawing inspiration from music’s past.

Building upon the Work of Those Who Came Before

In one of the more high-profile recent cases involving one musician possibly being inspired by another, Led Zeppelin’s classic “Stairway to Heaven,” one of the most played songs of all time, was alleged to have been heavily copied from a song recorded two years prior. According to the suit, the American band Spirit claims that composers Jimmy Page and Robert Plant (Zeppelin’s guitarist and vocalist, respectively) had borrowed heavily from their instrumental song “Taurus,” which Page and Plant more than likely heard when Zeppelin performed with Spirit during their first American tour in 1968–69.

In 2016, a district court judge denied Zeppelin’s motion to dismiss and ruled that there were enough similarities between the two songs for the infringement claim to go to trial, which subsequently ruled in favor of Page and Plant.⁴ This decision was appealed,⁵ and as of this writing the retrial has yet to be heard. It should be noted that while a three-judge Ninth Circuit panel ordered a new trial earlier this year, Zeppelin appealed this decision and requested a rehearing before an en banc panel of the Ninth Circuit.⁶ Arguments in front of this panel were heard on September 23, 2019, and the court’s ruling on whether the 2016 verdict will be upheld or remanded for a new trial may not be issued for several months.⁷ However, if there is a retrial, a key point will revolve around what is copyrightable and what is not, based on the laws that govern pre-1976 compositions, namely what is on file with the U.S. Copyright Office, a.k.a. the “deposit copy.”⁸

These copies are usually barebones chords, melody, and lyrics, and have none of the distinctive elements such as percussion, solos, or any orchestrations for brass, choir, strings, etc. (i.e., the elements that give many songs their distinctive feeling and distinguish them from one another, but which also, many times, mark songs as being within one genre or another). These elements are what are considered the “scènes à faire,” or stylistic hallmarks, which are standard for the genre.

Beyond the “scènes à faire” genre markers, many songs are also built upon nearly identical chord patterns. If we consider many songs by chords and genre hallmarks alone, then a high percentage of Western music would bear some level of similarity. Indeed, these elements are so common across a genre (or increasingly a part of how genres blend) that it is hard to say who might hold copyright over them if such a thing were to apply. It is for this reason that when awarding the Grammy to Sam Smith and their cowriters for “Stay with Me,” Petty and Lynne were not among those awarded trophies. To the Grammy Foundation, their contribution was as source material that was (or was not) “interpolated” to create Smith’s soaring gospel-influenced tune, but not part of the new song and worthy of sharing the award.⁹

Music has always been built upon the work of those who came before, so much so that there is not really any truly unique element to any song. However, interpretations of copyright ownership, coupled with recording technology and other cultural shifts, has so changed our perceptions that we no longer see influence but rather perceive theft. This, when combined with the lingering specter of the “cult of genius”—the belief that creators are singular individuals who pluck ideas out of the ether—have us reacting with cries of “Thief!” if we sense even the slightest whiff of “that sounds a lot like.” And families, recording labels, and lawyers are all too happy to file on their behalf, especially if it is a song by a bestselling recording artist with possibly huge royalties.

It is ironic that so much of this can be traced to a moment early in the 20th century when composers, spurred to action by the threat of new recording and playback technology, and championed by the venerable “March King” John Philip Sousa, helped push for what would become the Copyright Act of 1909. This was the first major copyright law passed in the United States since 1790 (the Copyright Act of 1831 subtly revised the code, and numerous amendments followed), and was passed to force the new recording industry (which also included player-piano roll manufacturers) to pay composers for using recordings of their music. Sousa and other composers wanted royalties on sales of recordings of their compositions.

However, what Sousa could not have foreseen was how the dual shifts of both recording technology and increasingly complex copyright laws (and lengthening copyright terms) would lead to a culture where a jury could find a composer in violation of copyright for merely sounding or “feeling” like another artist. Had today’s current copyright standards been in place in 1909, would Sousa have sued or been sued by Henry Fillmore for infringement of one of his many marches? If we are to demystify and demythify our perception of creative artists, especially musicians, we first have to recognize the transformative effect that both recording and digital technologies have had on our current cultural understanding of music. The physical act of taking what is a temporally locked art form and engraving it in a way that (now thanks to digital technology and streaming) is forever accessible in an “original” state has fundamentally altered the way in which we relate to and access music—and by extension changed how we think of copyright.

In an era where we have instantaneous access to over a century’s worth of recorded music and can easily switch between a song released this year and a song we may vaguely recognize or remember from 30 years ago—like some half-remembered dream—we either have to realize that artists who borrow and build upon those who came before are and have always been truly ingenious creators, or we need to redefine “creator” and loosen our copyright laws to allow for what has been standard practice in art since the beginning.

The Chilling Effect of Blurred Lines

It is now time to address the most infamous of the recent copyright cases, one whose resolution has cast doubt over the entire copyright system: “Blurred Lines.” I will not belabor the legal points behind the case and its appeal, but instead I will offer a few points on why, from a musical and historical basis, this decision was and remains a travesty.

Marvin Gaye, as an artist, was immensely talented and innovative, taking the stylistic elements of R&B and Motown and blending them in a way that positioned him at the forefront of funk and soul music. This place also marks him as one of the artists whose music was highly influential on disco, the genre with which his 1977 track “Got to Give It Up” is most associated.

However, many of the elements in this song (like the crowd noise, falsetto vocals, and cowbell rhythm that the court case hinged upon) can be traced to other artists that Gaye built upon, such as Ray Charles (“What I’d Say”) and James Brown (“I Feel Good”). As innovative and talented as Gaye was, he, much like Pharrell Williams and Robin Thicke, was building upon compositions that came before. The idea that an artist can infringe upon the copyright of another artist by simply invoking the feeling, groove, or genre tropes that both may be working within is an anathema to the entire history and evolution of music.

And let’s be clear, the elements at play in the “Blurred Lines” case were, popularly understood, not copyrightable. They were not covered in the deposit copy and are so common as to be “scènes à faire.” If the “Blurred Lines” decision is to become the legal standard, then, as many musicians and lawyers have noted, it could possibly have a chilling effect and stifle the creativity of artists around the world, which is exactly the opposite effect intended by copyright protection. Such a standard will stop or severely limit the ability of artists and composers to borrow and be inspired by the works that came before them, which is the very process that has allowed music to flourish and develop over the millennia.

A Language We May Not All Understand

The “sounds a lot like” standard—this idea that just sounding or feeling like the allegedly infringed upon song is grounds enough for a guilty verdict—that seems to be developing for infringement cases is in opposition to how music copyright was understood to function. To put in different terms, it would be like Old School being found guilty of infringing the copyright of Animal House because they both feature college fraternities behaving badly. There are many surface elements and stylistic tropes featured in both films, and if the same standards were applied to them as in the “Blurred Lines” or “My Sweet Lord” case, then Old School would probably be found guilty and, in the words of Dean Wormer, be placed on “double secret probation.”

However, no case was ever filed against Old School or any other college fraternity comedy—be it Revenge of the Nerds, Van Wilder, or PCU—because the standard for copyright infringement in film is much better understood and grasped by a lay audience and such a case would never even make it to trial. So why is music different? What is it about the aural arts that befuddle and confuse juries, judges, and most people who have never played an instrument? Unlike in literature or film where most people can “read” the works in question with a level of competence that allows them to judge if infringement occurred, music relies on either aural analysis or the ability to correctly interpret musical notation on a page. In other words, it would require a judge or jury to have a degree of fluency in what amounts to a foreign language. They would need to know the actual grammar, syntax, and elements of style that allow a work to be unique and to understand that language usually takes at least two semesters of undergraduate music theory to have even a basic competency.

In this way, music is not, as Stevie Wonder once sang, “a language we all understand.” If anything, the feeling or groove, what we respond to when we tap our feet or shake our hips and which was at the heart of the “Blurred Lines” case, is about the only truly universal thing within the art. Indeed, the decision in the “Blurred Lines” case hinged upon these elements and expert testimony that such similarities constituted infringement. These experts included numerous musicologists and theorists on both sides arguing many of the concepts I have discussed: melody, harmony, pitch, rhythm, instrumentation, etc. If you would like to dive into the deep end of the case, these concepts, and outcome, Edwin McPherson, who authored the amici curiae brief in support of Thicke and Williams’s appeal, wrote an article for Southern California Law Review analyzing these issues. He felt, as did many musicians and musicologists who signed in support of the brief, that there were many fundamental flaws and misleading representations made in the case.¹⁰

Sorting through conflicting expert testimony is hard enough for people who are familiar with and have knowledge of a field. So why is it that we entrust nonmusicians—with no grasp of the subtleties and history of musical composition practices—with the job of ruling on music copyright infringement? Until such a time as we properly address music copyright at the legislative level, perhaps we should impanel a jury of truly musical peers to pass judgment in such cases, much as Jason Palmer suggests in his 2016 article for the Vanderbilt Journal of Entertainment & Technology Law. While he concludes that this is the best solution, “not because [musicians] have more knowledge of music than the typical lay juror, but because they are the best actors at deciding what incentive structure best incentivizes their own industry,” I would posit that it goes deeper than this.¹¹ It is precisely because musicians are the most knowledgeable about musical language and history that they would be best able to rule if a piece of music was truly infringing, or just another song in a long line of songs that borrow and build liberally upon what came before—another composer following in grand tradition of musical inspiration that many courts are wrongly and tragically calling theft.

Endnotes

1. Sam Smith Explains Why He Settled Copyright Dispute with Tom Petty, CBC News (Feb. 6, 2015), https://www.cbc.ca/news/canada/british-columbia/sam-smith-explains-why-he-settled-copyright-dispute-with-tom-petty-1.2948473 [hereinafter Sam Smith Explains].

2. James Boyle & Jennifer Jenkins, Theft: A History of Music 187–91 (2017), https://law.duke.edu/musiccomic.

3. Sam Smith Explains, supra note 1.

4. Skidmore v. Led Zeppelin, 106 F. Supp. 3d 581 (E.D. Pa. 2015).

5. Skidmore v. Led Zeppelin, 905 F.3d 1116 (9th Cir. 2018).

6. Skidmore v. Led Zeppelin, 925 F.3d 999 (9th Cir. 2019).

7. Gene Maddaus, Led Zeppelin’s “Stairway to Heaven” Copyright Case Argued at 9th Circuit, Variety (Sept. 23, 2019), https://variety.com/2019/music/news/stairway-to-heaven-copyright-case-9th-circuit-1203346055.

8. Vernon Silver, Rock Riff Rip-Off: The Legal Loophole That May Leave Some of Rock’s Greatest Riffs Up for Grabs, Bloomberg (June 20, 2019), https://www.bloomberg.com/features/2019-classic-rock-riffs-loophole.

9. J. Freedom du Lac, The Only Person Sam Smith Didn’t Thank at the Grammys Deserves a Lot of Credit, Wash. Post (Feb. 9, 2015), https://www.washingtonpost.com/news/arts-and-entertainment/wp/2015/02/09/the-only-person-sam-smith-didnt-thank-at-the-grammys-deserves-a-lot-of-credit.

10. Edwin F. McPherson, Crushing Creativity: The Blurred Lines Case and Its Aftermath, 92 S. Cal. L. Rev. Postscript 67 (2018).

11. Jason Palmer, “Blurred Lines” Means Changing Focus: Juries Composed of Musical Artists Should Decide Music Copyright Infringement Cases, Not Lay Juries, 18 Vand. J. Ent. & Tech. L. 906, 933–34 (2016).